Felons still caretakers for vulnerable

IN-HOME SERVICES

Jennifer Gollan, Bay Citizen

Published 9:26 pm, Sunday, September 2, 2012

Three years after California barred felons from serving as publicly funded home health caretakers, people with criminal histories in theft, prostitution and drug possession are still caring for the state's most vulnerable and frail residents.

The situation has led to calls for tougher laws from some district attorneys and lawmakers, who worry the In-Home Supportive Services program is rife with loopholes.

This was not what the headlines heralded in 2009, when Gov. Arnold Schwarzenegger signed legislation to protect about 450,000 low-income elderly, blind and disabled people who rely on the program. But legal wrangling and lack of oversight got in the way.

Background checks were slow to start, then a judge blocked the law from taking effect, and no one tracked many of the felons who were acting as caretakers until another, watered-down law was passed 14 months later.

About 2 of every 3 felon caretakers detected by the state last year were granted waivers by their disabled and elderly clients.

And so far, efforts to shore up the law have failed.

"The system is flawed because it does not disqualify the majority of felons who commit theft offenses," said Patrick Sequeira, a Los Angeles County deputy district attorney. "Most businesses would not hire these felons to work in a position of trust. Why should the government hire these people to care for the disabled and blind?"

How it goes wrong

One such case exemplified how things can go wrong.

Phetsarath Chanthavong, a former home health aide in Fresno County, collected more than $3,000 for the better part of a year beginning in mid-2009, after the patient he was supposed to be caring for left the country, according to court records. Chanthavong had convictions for spousal and elder abuse and making criminal threats, and eventually pleaded guilty to welfare fraud in the In-Home Supportive Services case.

Critics say the weak points of the current law invite fraud from people whose felony convictions limit their job prospects. Caretakers in the home health program earn an average of $9.50 an hour, $1.50 above the state's minimum wage.

"Many people that are doing IHSS fraud have rap sheets," said Mike Elder, a former Fresno County prosecutor who handled the case against Chanthavong.

Chanthavong should have been disqualified from the state program by the 2009 law. But it took more than a year for the state to complete criminal background checks of 390,000 caretakers, more than 800 of whom were barred from continuing their jobs.

Following the law

How many similar cases present future danger is unknown, because the state and counties disqualified only people convicted of the most egregious felonies who sought to become home health aides, both before the 2009 law and during a 14-month stretch after a judge blocked the state from implementing it.

State officials say they simply were following requirements of the law.

"When the legislation was passed, we did not look back; we just looked forward," said Michael Weston, a spokesman for the state Department of Social Services.

Many got waivers

On Feb. 1, 2011, the state began flagging caretaker applicants who had been convicted of "tier two" felonies, such as violent felonies and sex offenses. In all, 747 people were disqualified from the program through mid-March, according to the most recent figures available from the Department of Social Services.

Of those, 516 - about 69 percent - later received a waiver from patients to become their caretaker, allowed under a 2011 law if the conviction did not involve welfare fraud or elder or child abuse - the major disqualifying felonies before 2009.

Schwarzenegger's reforms were supposed to exclude anyone who had committed a felony in the past decade. The law also was intended to help control the spiraling cost of the program by weeding out providers whose records signaled potential for fraud. In the previous eight years, the cost of the program, funded with federal, state and local tax revenue, had more than doubled to $5 billion.

But in November 2009, an Alameda County Superior Court judge found the state did not have the authority to prohibit all felons from working in the program.

Serious felonies

The Legislature responded in February 2011 with a law that barred those who had been convicted of violent or serious felonies, sex offender registrants and people convicted of a felony for fraud against a public social services program.

However, the law allowed people with convictions dating back more than a decade to become caretakers, even if their crime was murder. Those convicted of drug possession and grand theft - among the most common felonies - also can still become home health aides.

Fraud investigators say those are not the best credentials for in-home caretakers, citing the Los Angeles case of Joseph Herd Jr., who became a caregiver despite two felony convictions for drug sales. In 2009, Herd collected more than $1,600 while the person he claimed to be caring for at home was actually in the hospital.

Over the past three years, Sequeira, the Los Angeles County deputy district attorney, has participated in a statewide task force that helped the state develop policies to thwart fraud in the In-Home Supportive Services program. The state Department of Social Services is reviewing the recommendations and intends to have protocols in place this fall.

A bill that would have expanded the list of disqualifying felonies to include some financial crimes - including forgery, identity theft and embezzlement - failed in June in the Senate Human Services Committee.

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